Penn State scandal proves NCAA schools should not social media monitor student athletes

The Penn State child molestation case against former Penn State coach Jerry Sandusky is already the worst college sports scandal of all time. It appears that Penn State officials may have had actual knowledge of the allegations against Sandusky since either 1999 or 2002 and did not take the appropriate actions necessary to stop him.

It is too soon to speculate, but it is possible that Penn State may have tremendous legal liability regarding the allegations against Sandusky even though Sandusky has not been an employee of the university since his retirement in 1999. These allegations have already led to reports that Penn State's bond rating may be downgraded in anticipation of the potential legal liability. If Penn State's bond rating is lowered it may make it more expensive for the school to borrow money for capital projects which may in turn harm Pennsylvania taxpayers and students who attend the university.

It does not appear that Sanduksy created any incriminating social media posts about his alleged illegal activity. If Sandusky committed his crimes off campus on his own time and Penn State had no knowledge of his alleged wrongdoing it most likely would be difficult for Sandusky's alleged victims to win a civil suit against Penn State. However, if Penn State was aware of Sandusky's alleged criminal activities and failed to stop him the school may have major legal liability issues to defend against.

NCAA schools do not have a legal duty to monitor the social media content of their student-athletes. However, there are some schools that are creating the duty to monitor their student-athletes' public and private social media content. I have discussed the numerous constitutional and legal liability issues involved with social media monitoring student-athletes on multiple occasions.

If a school decides to create the duty to monitor its student-athletes social media content and fails to prevent a student-athlete from committing a crime or an incident that creates civil liability that may have been noticed via the student's social media activity the school may have Penn State like liability issues to defend against.

After the Penn State scandal, I find it hard to believe that a school would even think about creating a duty to monitor the social media content of its student-athletes. If Penn State had a monitoring policy in place for its student-athletes or employees and missed any social media posts that hinted at any illegal activity Penn State's liability for this terrible tragedy would be even greater than it already may be.

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

University of North Carolina's Student-Athlete Social Media Policy May Be Unconstitutional

The University of North Carolina (UNC) recently updated its Department of Athletics Policy on Student-Athlete Social Networking and Media Use. It appears that UNC revised its student-athlete social media policy as part of its response to the NCAA Notice of Allegations (NOA) that alleged that it failed to monitor the social media activity of its student-athletes. According to an NCAA spokesman, the NCAA does not require its members to monitor the social media activity of its members; it only encourages schools to do so.

UNC's response to the NCAA NOA appears to agree with 8 of the 9 allegations. UNC appears to dispute the allegation that it failed to monitor the social media activity of its student-athletes. UNC's new student-athlete social media policy may have been created to try to mitigate some of the possible NCAA sanctions that may arise from this matter.

UNC is a public institution and therefore the 4th amendment of the U.S. Constitution applies and protects students from unreasonable searches and seizures by UNC. According to UNC's new social media policy, "Each team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members’ social networking sites and postings (“Team Monitor”). The Department of Athletics also reserves the right to have other staff members review and/or monitor student-athletes’ social networking sites and postings."

Students who participate in extracurricular activities have a diminished expectation of privacy compared to other students; however, that diminished expectation of privacy does not enable the state to access and monitor the private electronic content of student-athletes to ensure that there are no possible violations of the law, UNC policies, NCAA violations, etc... Students have a reasonable expectation of privacy for their non-public electronic communications. If UNC has a right to access the private social media posts of its student-athletes then what will stop UNC from claiming it has the right to access and monitor private email accounts, voice-mail messages, etc... and installing eavesdropping equipment into off-campus apartments?

Therefore, I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution. I urge UNC to revise its new student-athlete social media policy before UNC has to utilize resources defending an unconstitutional policy that may create mistrust between its student-athletes and the university and tremendous legal liability issues.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The NCAA, Social Media Monitoring, Censorship, the First Amendment, the Supreme Court, and Video Games

Last week, the NCAA may have created a major legal liability quagmire for its member institutions when it alleged that the University of North Carolina failed to monitor the social media activity of its football players.

Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?

Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?

According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?

What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?

The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.

In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?

Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.